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Foundation Law Assignment: Case Analysis Based on Relevant Legislations

Question

Task: This foundation law assignment is in three Parts.
“Part 1(max 1000 words): Legislative Memo
Find the current version of the COVID-19 Emergency Response Act 2020 (Qld) and write a ‘Legislative Memo’ for the legislation.

“Part 2 max 1000 words): Case Brief
Find the case Gerner v Victoria [2020] HCA 48. Prepare a case brief for this case, along the lines that we consider in this course. Key matters to address include:

  • the citation
  • court
  • judge/s
  • procedural history
  • facts
  • legal issues
  • the final orders
  • reasons for judgment (including the ratio decidendi); and
  • Some critical perspective on the matters addressed by the case and the consequences of the decision

“Part 3 (max 500 words): Statutory interpretation exercise
You are a criminal defence lawyer working for a law firm in Brisbane. A regular client of yours, Paul, has been charged with failing to wear or carry a face mask pursuant to s 4 of the (fictional) Mandatory Mask Wearing Act 2020 (Qld).

Paul explains that a few days earlier, on 3 March 2021, he had filled his car with petrol and when he went inside the petrol station to pay for the fuel, he realised he had forgotten to bring a mask. He lifted the t-shirt he was wearing up over his mouth and nose while inside the building. The attendant did not question this, and the transaction was completed.

As Paul turned to leave the building, two police officers who had lined up behind him to purchase some donuts, stopped him. They knew Paul from his past indiscretions. They asked Paul why he wasn’t wearing a mask. Paul replied that he was wearing his t-shirt and had been covering his face at all times while he was in the building. The officers didn’t accept this and charged him with failing to wear or carry a mask. He has now come to you for advice about disputing the charge.

This is the first time you have had a client charged with such an offence.

Your task is to write a short advice addressing how the legislation would be interpreted in the context of Paul’s circumstances.

Answer

Foundation Law Assignment Part 1: Legislative Memo
The legislative memo mainly includes various sections and parts of the legislation, COVID-19 Emergency Response Act 2020 (Qld). Apart from listing the sections of the legislation, the purpose of the legislation, critical perspectives on the sections of the Act, justification about the fair balance between competing rights and interest are also discussed in the context. The main purposes of the Act are protecting the welfare, safety, and health of persons who are affected or will affect by Covid, to provide support to the rental sector of Queensland during this emergency period, support to the retail residential and prescribed lease-related matters, and to facilitate the small business activities, public administration and judicial process that are disrupted due to Covid emergency . There is a total of nine parts in this Act, and part 8 is divided into two subparts. Part 1 of the Act discusses the purposes of the Act, its definition, and active application. Part 2 describes the powers to make instruments and regulations.

Part 3 of the Act regulates the reduction of a physical contract between persons. Section 8 of the part regulates the power of individuals sot attends meetings or places. The key purpose of this section is to regulate persons who are going to attend any meeting or any place that is related to any inspection, any board meeting, and physical examination by a doctor. Under this section, it allows an individual to modify the procedure related to the meeting, suspending a requirement for a person that is required to attend a meeting, it empowers the chief executive to hold a meeting or suspend a requirement related to the entity . Section 9 of part 3 informs about regulation-making power related to documents about specific matters such as the production of a document, signing of the document, witness of the signatures, record of information, file, lodge, or service of a and retention of the document. The Act allows the Queensland government to make commercial leases under Retail Shop Leases Act 1994or the Act.

Part 4 of the Act describes a modification of the statutory time limits. Section 12 of this part defines the power of an entity about statutory time limit modification. It allows an entity to modify the time limits of the things such as amount payment, application making, compliance with the notice, exercise of power, reasons for the decision, and decision-making. The modification regarding the time limit is applicable if another entity provides consent or agreed on the modification. In part 5 of the Act, the proceedings of relevant entity such as tribunal court or another entity as per sec-14 are discussed. The time period of the proceeding of a relevant entity can be exceeded if it is not necessary. To avoid doubt, the Act declares that sec-15 is applicable to the provisions such as Dangerous Prisoners act, sec- 590 and 671 of criminal code, Limitations of Acts and sec-222 of justice act. Sec-16 of part 5 declares the regulations related o particular matters related to proceedings. Part 6 explains the appointment the commissioner of small business, power and functions of the commissioner, preservation of rights and reporting . The sec-20 of the part describes small business lease and small business tenancy dispute. Due to the impact of Covid, the business functions have been affected heavily; imposing the commissioner to look after the small business functions and lease-related disputes will help the small businesses to carry out their activities with fewer interruptions.

Part 7 imposes regulations regarding retail and other prescribed leases. As per the part, the Act imposed severe measures that safeguard the interest of the lessee by prohibiting the recovery of possession or termination of the relevant lease. The sec-23 of part 7 also allows for a dispute resolution process regarding relevant leases. The Act guides the tenants and landlords to temporarily change their leasing arrangement because most of the businesses affected due to the impact of Covid. . If any small business is affected by Covid, then the business owner can seek help from a small business financial counseling program. The program helps the small business identify suitable action plans, the confidentiality of the financial position assessment, and helps the business negotiate with the creditors and lenders. Hence, the section of the Act related to the leases helps the lessee to face any critical condition during the time of Covid.

Part 8 of the Act ensures that the residential tenants' rights are affected due to Covid. While the Act is regulated to ensure the safety of the tenants, the Residential Tenancies and Rooming Accommodation Act 2008 is also followed to make further provisions to respond to the Covid emergency. The key aim of the regulation is to support the residential rental sector of Queensland during the emergency period of Covid. It provides relief for the tenants in the form of the moratorium, which supports the tenants from eviction during the emergency period of Covid. Part 9 explains transitional provisions that are related to relevant acts . There are certain factors that seem as motivation for the legislation. The impact of Covid is limited to businesses, but it also affected the income of individuals, so imposing the legislation protects the individuals and businesses from uncertainty because the current condition is different from the usual condition. Hence, the Covid related emergency responses act is adequate to address the problems caused due to the impact of Covid.

Foundation Law Assignment Part 2: Case Brief
In the case of Gerner v Victoria [2020] HCA 48, Julian Gerner is the plaintiff, and the State of Victoria is the defendant. Gerner is the restaurant owner, who alleged that the lockdown restrictions caused significant loss in the revenue of the restaurant. The plaintiff continued the proceedings seeking the declarations from the high court that the lockdown restrictions were invalid and infringed the freedom of movement as per the Constitution. . There were three arguments presented by the plaintiff,among which one says the freedom is implied from the Constitution's structure and text, the next one is about a part of implied freedom, and the third argument says it is implied as per s-92 of Constitution, which represents free trade between states . On the other hand, the defendant imposed a restriction in the movement of people in the state due to the emergency of Covid. As per the Public Health and Wellbeing Act of 2008, the Victorian Government allowed exercising power, which includes the ability to restrict the movement of any groups or any person in a specific area.

The argument of the plaintiff is based on the case Murphy J in McGraw-Hinds (Aust) Pty Ltd v Smith, in which the communication freedom as per constitutional implication means physical movement. In the case that the plaintiff uses as a supported case, the suggestions were inconsistent with the settled approach. The argument framed by Mr. Gerner, the plaintiff, was unusual because, as per his argument, careful reading about the regulations of the Constitution can be implied in any care of freedom of movement. The decision of the case is showed by rejecting the argument of the plaintiff based on three reasons. The first reason is the freedom of intrastate movement is not applicable in the case as there is no basis for that in Constitution’s sec-92 . The court commented on the argument of the plaintiff, including s-92 of the Constitution, by stating that the section is directed to prevent restrictions on goods free flow across state borders. The section does not interfere with the internal management of the states. The support of sec-92 by the plaintiff is also rejected by the court because of the phrase among the states, which means throughout the Commonwealth.

The second reason behind rejecting the argument of the plaintiff as the facts presented in support of the plaintiff is not able to establish the fact that the movement limitations restricted the political communication in Victoria. The third reason behind the rejection of the plaintiff's argument is the hierarchy of laws of land than such freedom. As per common law, the individuals are allowed to move freely, but in the case of emergency purpose, the state has the power to impose restrictions on movements . As per sec-106 of the Constitution, the states' powers, the state does not have to confirm the limitations suggested by the plaintiff. The decisions made by the court are reasonable enough to reject the argument of the plaintiff, as the state government has its own legislative powers because they are the members of federation that wereConstitution establishedtion, and it is stated in the Constitution's sec-106. The other rationale behind rejecting the argument is valid because Lange protects political communication, not general communication.

The plaintiff argued that freedom of political movement is valid, and the government should be responsible for protecting the rights of individuals regarding the freedom of political movement. In this context, the plaintiff tried to argue that movements regarding any purpose need to be counted as political communication and should be maintained by the constitutional system. The plaintiff did not plead that the lockdown direction or the Act restricted the political communication. Hence, it cannot be considered a valid argument. The support of sec-92 of the Constitution by the plaintiff is also rejected as it said that movement across the state borders, which the Constitution is not purported to protect . The arguments presented by the plaintiff are neither valid nor fits with the legislation, so there is no chance that the court could support the argument of the plaintiff. The court made the final decision by rejecting the plaintiff's arguments and allowing the defendant's demurrer.

The demurer of the case is the power of the Victoria government regarding the state of emergency, on the basis of which the state government imposed the restriction on movement due to the emergency of Covid. The demurer of the defendant is allowed and accepted by the court in the final decision as the defendant has taken action as per the legislative power possessed by state government according to s-106o of Constitution and S-200-1(b) and (d) of Public Health and Wellbeing Act 2008 (Vic). As per the latter Act, the Victorian government can exercise the emergency power in terms of the state of emergency, and Covid-19 is a state of emergency, which requires lockdown restrictions and the movement of people needs to be restricted due to the emergency . The action of the defendant fulfills the criteria of both legislations and is based on reasonable conduct. The key reason behind the acceptance of the defendant's more demure as the defendant takes action based on the support of the legislation, and the arguments presented by the plaintiff are not valid by any legislation or by any supportive cases.

Foundation Law Assignment Part 3: Statutory interpretation exercise
The situation in the context arises because of not putting or carrying the mask while paying for the fuel. Covering the face with a t-shirt cannot be accepted as a substitute for the mask as a surgical mask or any other mask that is covering the face properly and fitted well. Schedule 1 of the Mandatory Mask Wearing Act 2020 clearly mentions that a bandana or scarf cannot be considered a face mask. As per the act infringement notice fine will be imposed if a person fails to carry or wear a mask in the places as per sec-3 of the Act. There are certain exemptions in sec-3, as it explains that a person who is traveling along in a private vehicle can be exempt from sec 3. Although wearing the mask is necessary when an individual is outside from the residence or in an outdoor space, commercial vehicle, or in a place where physical distancing is not possible, but there is a certain exemption to the rule. If an individual is in a private vehicle and traveling alone, then the rule can be exempted. The exemption to sec-3 can be presented as an argument.

In sec-4, there is no mention of the situation of an individual who is in a private vehicle, which indicates that the presence in the personal vehicle alone without a mask does no falls under sec-4. The penalties are applicable for those individuals who contravene the sec-4 requirement. Hence, it can be said that neither sec-4 nor sec-3 is violated in this case because sec-3 has exemptions that eliminate the mandatory wearing or carrying mask in the case of individuals who are driving alone in a private vehicle. The sec-4 does not include any requirement related to what the person should do while in a private vehicle. However, the use of a t-shirt cannot be considered a face mask as it cannot fully cover the face. It is advisable for Paul that sec3 and sec-4 of the Act are not against the action of Paul, but the use of a t-shirt cannot be considered as a face mask as per schedule 1. However, it is advised to Paul that whenever he is out of his residence, he should carry and wear a mask to follow the mandatory requirements of the Act.

Even if the exemptions of sec-3 support Paul's side, covering the face with a t-shirt is not countable as a face mask, which can protect from harmful bacteria or substances. Based on the exemptions of sec-3 and the requirements in sec-4, it can be said that the mandatory regulation to wear and carry a mask is not violated by Paul, which can be supported by the sec-3 exemptions and the requirements explained in sec-4. It is mentioned that if an individual fails to act as per sec-4, it will be considered a contravention. In this case, the action of Paul not seems to contravening the requirements of sec-4.

References
Austlii.edu, Gerner v Victoria [2020] HCA 48 (10 December 2020) (2020) Austlii.edu.au business.qld, Coronavirus (COVID-19) Support for Commercial Tenants (May 1, 2020) www.business.qld.gov.au

Cj, Kiefel et al, “HIGH COURT of AUSTRALIA” (, 2020) Dickens, Stephen and Genevieve Hallam, COVID-19 Emergency Response Act | Mills Oakley (2020) | Mills Oakley

Evans, Shane and Megan Fairweather, COVID-19: Queensland’s New Regulation-Making Powers Impact the Health Industry - Insight - MinterEllison (2020) www.minterellison.com

hrlc.org.au, High Court of Australia Rejects Challenge of COVID-19 Lockdown Restrictions (2020) Human Rights Law Centre

Legislation.qld, “COVID-19 Emergency Response Act 2020” (, 2021) LexisNexis, Freedom to Move Rights during a State of Emergency? (2021) www.lexisnexis.com.au

SHARPE, MICHELLE, High Court: March 2021 (2021) Law Society Journal

Sibley, Cain and Deborah Mak, “Administrative Law- a Year in Review” (2021)

Wille, Christopher and Jennifer Degotardi, COVID-19: (Australia) QLD Parliament Introduces Code of Conduct Enabling Act: COVID-19 Emergency Response Act 2020 (Qld) (2021) The National Law Review

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